This piece was first published by The Brisbane Times.
In a rare turnaround, Judge Posner of the United States Court of Appeals recently admitted that he was wrong in a landmark case he decided 7 years ago.
Crawford v Marion County allowed the state of Indiana to require voters to show photo identification at the ballot box and was later upheld by the US Supreme Court.
In America, state laws requiring voters to produce identification at ballot boxes have proliferated in the last ten years; a total of 34 states now have some form of voter ID law. The laws have been very controversial.
Reflecting on his decision in Crawford, Judge Posner now believes he got it wrong; instead of preventing voter fraud, voter ID laws in fact suppress the vote by denying people who have a legitimate entitlement to vote access to the ballot box.
He told the Huffington Post that the dissenting judge in that case was correct.
That dissent said “Let’s not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic.”
Importantly, Judge Posner was a Reagan appointment.
Judge Posner’s turnaround should be on the mind of Queensland Attorney-General Jarrod Bleijie this week.
Bleijie has announced plans to introduce laws requiring voters to produce identification in order to cast their vote at Queensland elections, making Queensland the only state or territory to have a voter ID requirement.
The rationale for the law, according to Bleijie, is to prevent voter fraud.
But the Queensland Government’s own discussion paper on the topic acknowledged that there is no evidence that voter fraud is occurring at the ballot box.
The laws would create unnecessary hurdles for all Queenslanders wanting to vote in elections, but they would be especially tough on particular groups.
Requirements for voters to show ID would make voting particularly difficult for many Aboriginal and Torres Strait Islander peoples as well as people experiencing homelessness, young people, old people and people with disability who are less likely to have a driver’s licence or other ID.
Bleijie says that the new law will not require voters to produce photo ID.
Even so, requirements to produce ID that show proof of address clearly raise difficulties for people living without a fixed address such as those experiencing homelessness.
A question also arises as to how these laws will affect Aboriginal and Torres Strait Islander people living remotely.
There are other practical concerns that could lead to discriminatory outcomes.
Those who are less mobile, elderly people or some people with disabilities may be less able to return to the voting booth if they forget their ID.
While it is difficult to estimate, over 40,000 people could be affected by the voter identification requirement.
The Australian Electoral Commission reported in 2007 that nearly 1.5 per cent of new enrolments were by people who do not have a driver’s licence or other non-photographic identification such as a birth certificate.
If 1.5 per cent of Queenslanders currently enrolled to vote were unable to produce ID, then 41,821 enrolled voters would be prevented from casting a vote.
The Attorney says that the Queensland voter information letter that is sent to all enrolled voters will be sufficient proof of identity.
While this is a welcome broadening of the ID requirements, it relies on all voters without ID receiving the letter and remembering to bring it.
Judge Posner regrets that he didn’t have enough evidence in 2007 to come to the right decision.
Queensland’s Attorney has the opportunity that Posner did not.
On the evidence available in Queensland there is simply no need for this law and too great a risk of denying Queenslanders their fundamental democratic rights.
Given the lack of evidence it is difficult to avoid the conclusion that the voter ID laws are politically motivated.
The right to vote is a fundamental democratic value and a human right.
It must only be limited where absolutely necessary.
The heart of the problem with the Queensland proposal is that voter ID requirements will make it harder for people to vote.
Given the worrying trends of lower voter turnout at Australian federal elections, decreased youth enrolment and the fact that hundreds of thousands of people voted incorrectly (not counting those who intended to vote informal), reform at this time must aim to make voting easier, not introduce more barriers to participation.
Emily Howie is the Director – Advocacy & Research at the Human Rights Law Centre.